Purushottama Patnaik Vs. Choitana Naiko and ors. - Court Judgment

LegalCrystal Citation

legalcrystal.com/774547

Subject

Civil

Court

Chennai

Decided On

Feb-21-1902

Reported in

(1902)12MLJ188

Appellant

Purushottama Patnaik

Respondent

Choitana Naiko and ors.

Excerpt: - .....defendants alone. it is not alleged or shown that it so survived. on the contrary, it was shewn that the deceased 3rd defendant left 3 minor sons, as his legal representatives who were not already on the record. as the court had no power to grant an adjournment, the order of dismissal of the suit passed on the adjourned date was, of course, inoperative. that order is accordingly set aside and the suit must be re-admitted under its original number in the register to be dealt with under section 368, c.p.c. costs in this and in the lower appellate court will then be costs in the cause.

Judgment:

1. When it was represented to the District Munsif's Court on the 6th of February 1900, that the 3rd defendant was dead, as in fact he was, the Court had no power to adjourn the suit if the cause of action did not survive against the surviving defendants alone. It is not alleged or shown that it so survived. On the contrary, it was shewn that the deceased 3rd defendant left 3 minor sons, as his legal representatives who were not already on the record. As the Court had no power to grant an adjournment, the order of dismissal of the suit passed on the adjourned date was, of course, inoperative. That order is accordingly set aside and the suit must be re-admitted under its original number in the register to be dealt with under Section 368, C.P.C. Costs in this and in the lower appellate Court will then be costs in the cause.